Additional Information
Book Details
Abstract
With over 20 years’ experience in teaching in this area, Sukhninder Panesar’s Equity & Trusts offers the student reader a contemporary account of how equity and the law of trusts applies to real people and real situations in modern society. Key academic debates and the theoretical aspects of the subject are also considered throughout equipping the student reader with an understanding not only of what the law is, but why it is so.
Table of Contents
| Section Title | Page | Action | Price |
|---|---|---|---|
| Cover\r | Cover | ||
| Half Title Page | i | ||
| Title page | iii | ||
| Copyright Page | iv | ||
| Brief Contents\r | v | ||
| Contents | vii | ||
| Preface | xvi | ||
| Table of cases | xx | ||
| Table of statutes | xxxiii | ||
| Part I Introduction to equity and trusts | 1 | ||
| 1 Introduction to equity | 3 | ||
| Learning objectives | 3 | ||
| Setting the scene: Equity and role of unconscionability | 4 | ||
| Introduction | 5 | ||
| The common law | 6 | ||
| The origins and development of equity | 8 | ||
| Equity and the role of conscience | 11 | ||
| Unconscionability, fairness and the role of context | 14 | ||
| The Judicature Acts 1873 and 1875 and the relationship between law and equity | 21 | ||
| Fusion fallacy | 23 | ||
| Equitable maxims | 25 | ||
| Nature of proprietary rights in law and in equity | 30 | ||
| Equity and social reform | 33 | ||
| Conclusion | 36 | ||
| Moot points | 37 | ||
| Further reading | 37 | ||
| 2 The trust concept | 38 | ||
| Learning objectives | 38 | ||
| Setting the scene: Hambro and Others v The Duke of Marlborough and Others [1994] 3 WLR 341 | 39 | ||
| Introduction | 41 | ||
| Definition | 43 | ||
| The key features of the trust | 44 | ||
| Trust as a product of fragmentation of ownership | 49 | ||
| Historical foundations of the trust | 49 | ||
| Trusts and law reform | 51 | ||
| Classification of trusts | 53 | ||
| The operation of section 33(1) Trustee Act 1925: protective trusts | 55 | ||
| The contemporary significance of trusts | 62 | ||
| Some key players and concepts in the trust relationship | 64 | ||
| Conclusion | 66 | ||
| Moot points | 66 | ||
| Further reading | 67 | ||
| 3 The trust distinguished from other legal concepts | 68 | ||
| Learning objectives | 68 | ||
| Setting the scene: Re Mills [1930] 1 Ch. 654\r | 69 | ||
| Introduction | 69 | ||
| Contract | 70 | ||
| Agency | 72 | ||
| Bailment | 73 | ||
| Interests under wills and administration | 74 | ||
| Debts | 76 | ||
| Powers: general observations | 83 | ||
| Different types of power of appointment | 85 | ||
| Exercising a power of appointment | 88 | ||
| Excessive or fraudulent exercise of a power | 90 | ||
| Consequences of not exercising a power of appointment | 92 | ||
| Conclusion | 95 | ||
| Case study | 95 | ||
| Moot points | 96 | ||
| Further reading | 96 | ||
| Part II Creating the trust relationship | 97 | ||
| 4 The three certainties | 99 | ||
| Learning objectives | 99 | ||
| Setting the scene: Mcphail v Doulton [1971] AC 424 | 100 | ||
| Introduction | 101 | ||
| The effect of uncertainty | 102 | ||
| The rationale for certainty | 103 | ||
| Certainty of intention | 103 | ||
| Certainty of subject matter | 110 | ||
| Certainty of objects: general observations | 116 | ||
| The constituent elements of certainty of objects | 117 | ||
| The test of certainty of objects for a fixed trust | 119 | ||
| The test of certainty of objects for a discretionary trust | 122 | ||
| Conclusion | 129 | ||
| Case study | 130 | ||
| Moot points | 131 | ||
| Further reading | 131 | ||
| 5 Formalities | 133 | ||
| Learning objectives | 133 | ||
| Setting the scene: The Vandervell Saga 1958–1965 | 134 | ||
| Introduction | 135 | ||
| Testamentary trusts | 135 | ||
| Inter vivos trusts | 135 | ||
| Declarations of trust | 136 | ||
| Dispositions of equitable interests | 141 | ||
| Conclusion | 156 | ||
| Case studies | 156 | ||
| Moot points | 157 | ||
| Further reading | 157 | ||
| 6 Constitution of trusts | 158 | ||
| Learning objectives | 158 | ||
| Setting the scene: Pennington v Waine [2002] 1 WLR 2075 | 159 | ||
| Introduction | 159 | ||
| Completely constituted and incompletely constituted trusts | 160 | ||
| The Milroy v Lord principles of conferring a benefit on a donee | 161 | ||
| Declaration of trust | 163 | ||
| Transfer to trustees | 166 | ||
| Equity will not strive officiously to defeat a gift | 169 | ||
| Enforcing an incompletely constituted trust | 174 | ||
| Exceptions to the rule that equity will not assist a volunteer | 184 | ||
| Proprietary estoppel | 193 | ||
| Conclusion | 194 | ||
| Case studies | 194 | ||
| Moot points | 195 | ||
| Further reading | 196 | ||
| 7 Secret trusts and mutual wills | 197 | ||
| Learning objectives | 197 | ||
| Setting the scene: Re Boyes (1884) 26 Ch D 531 | 198 | ||
| Introduction | 198 | ||
| Succession | 199 | ||
| Definition of a secret trust | 202 | ||
| The theoretical justification of secret trusts | 204 | ||
| Requirements for a fully secret trust | 208 | ||
| Requirements for a half-secret trust | 216 | ||
| Predecease of the secret beneficiary | 217 | ||
| Predecease of the secret trustee | 218 | ||
| Can a secret trustee derive a benefit from the secret trust? | 218 | ||
| How are secret trusts classified? | 219 | ||
| Mutual wills | 220 | ||
| Conclusion | 228 | ||
| Case study | 229 | ||
| Moot points | 230 | ||
| Further reading | 230 | ||
| 8 The beneficiary principle | 232 | ||
| Learning objectives | 232 | ||
| Setting the scene: Re Astor’s Settlement Trusts [1952] Ch 534 | 233 | ||
| Introduction | 234 | ||
| Non-charitable purpose trusts and charitable trusts | 234 | ||
| Is the trust a purpose trust? | 235 | ||
| The beneficiary principle stated | 236 | ||
| Rationale behind the principle | 237 | ||
| The Re Denley principle: a situation outside the beneficiary principle | 241 | ||
| The anomalous cases | 245 | ||
| The construction of gifts to unincorporated associations | 249 | ||
| Reform | 256 | ||
| Conclusion | 257 | ||
| Case study | 258 | ||
| Moot points | 258 | ||
| Further reading | 259 | ||
| 9 Illegality and public policy | 260 | ||
| Learning objectives | 260 | ||
| Setting the scene: Blathwayt v Baron Cawley [1976] AC 397 | 261 | ||
| Introduction | 261 | ||
| Freedom of disposition and public policy | 262 | ||
| Trusts contrary to public policy | 263 | ||
| Illegality | 268 | ||
| Trusts which contravene the perpetuity rules | 269 | ||
| Trusts to safeguard property from creditors | 270 | ||
| Trusts defeating the rights of the family and dependants | 276 | ||
| Trusts defeating the rights of a spouse | 278 | ||
| The Law Commission’s consultation paper | 280 | ||
| Conclusion | 281 | ||
| Case study | 281 | ||
| Moot points | 282 | ||
| Further reading | 282 | ||
| Part III Trusts implied by law | 283 | ||
| 10 Resulting trusts, part I: Nature of resulting trusts | 285 | ||
| Learning objectives | 285 | ||
| Setting the scene: When does a resulting trust arise? | 286 | ||
| Introduction | 286 | ||
| Theories explaining the imposition of a resulting trust | 287 | ||
| The ‘beneficial vacuum’ theory | 287 | ||
| Resulting trusts and a restitutionary justification | 288 | ||
| Resulting trusts and the role of intentions | 292 | ||
| Automatic and presumed resulting trusts | 296 | ||
| Westdeutsche: the prevailing view | 297 | ||
| Conclusion | 300 | ||
| Moot points | 301 | ||
| Further reading | 301 | ||
| 11 Resulting trusts, part II: Imposing resulting trusts | 303 | ||
| Learning objectives | 303 | ||
| Setting the scene: Problems requiring a resulting trust solution | 304 | ||
| Introduction | 305 | ||
| Failure of the trust | 305 | ||
| Resulting trusts and Quistclose trusts | 309 | ||
| Unexhausted funds | 313 | ||
| Voluntary conveyance in the name of another | 329 | ||
| Purchase in the name of another | 333 | ||
| Rebutting the presumption of a resulting trust | 335 | ||
| Rebutting the presumptions and evidential matters | 339 | ||
| Resulting trusts and the family home | 348 | ||
| Conclusion | 355 | ||
| Case studies | 356 | ||
| Moot points | 357 | ||
| Further reading | 357 | ||
| 12 Constructive trusts, part I: Nature of constructive trusts | 359 | ||
| Learning objectives | 359 | ||
| Setting the scene: Why do we impose constructive trusts? | 360 | ||
| Introduction | 360 | ||
| When will a constructive trust be imposed? | 361 | ||
| Institutional and remedial constructive trusts | 363 | ||
| An institutional constructive trust | 363 | ||
| A remedial constructive trust | 364 | ||
| Does English law recognise a remedial constructive trust? | 369 | ||
| Consequences of the imposition of a constructive trust | 373 | ||
| Conclusion | 376 | ||
| Moot points | 377 | ||
| Further reading | 377 | ||
| 13 Constructive trusts, part II: Imposing constructive trusts | 379 | ||
| Learning objectives | 379 | ||
| Setting the scene: Problems requiring a constructive trust solution | 380 | ||
| Introduction | 381 | ||
| Acquisition of property as a result of unlawful conduct | 381 | ||
| Unauthorised profits gained by a fiduciary | 404 | ||
| Constructive trusts and the family home | 410 | ||
| Miscellaneous situations giving rise to a constructive trust | 451 | ||
| Conclusion | 463 | ||
| Case studies | 463 | ||
| Moot points | 464 | ||
| Further reading | 465 | ||
| 14 Constructive trusts, part III: Imposing constructive trusts – intermeddling with trust property | 467 | ||
| Learning objectives | 467 | ||
| Setting the scene: Royal Brunei v Tan [1995] 2 AC 378 | 468 | ||
| Introduction | 468 | ||
| Nature of liability for knowing assistance | 469 | ||
| Requisites for liability for knowing assistance | 471 | ||
| Receipt of trust property in breach of trust | 492 | ||
| Significance of knowing receipt liability and requisites for liability | 492 | ||
| Conclusion | 504 | ||
| Case study | 505 | ||
| Moot points | 505 | ||
| Further reading | 506 | ||
| Part IV The administration of trusts | 507 | ||
| 15 Introduction to trusteeship appointment, removal and retirement | 509 | ||
| Learning objectives | 509 | ||
| Setting the scene: Klug v Klug [1918] 2 Ch 67 | 510 | ||
| Introduction | 510 | ||
| Capacity and numbers | 512 | ||
| Appointment of initial trustees | 512 | ||
| Appointment of new trustees | 513 | ||
| The retirement of trustees | 520 | ||
| Removal of a trustee | 521 | ||
| Special types of trustees | 521 | ||
| Vesting of the trust property in trustees | 523 | ||
| Conducting the office of trusteeship | 523 | ||
| Control of trustees’ discretions | 525 | ||
| Do trustees need to give reasons? | 537 | ||
| Conclusion | 540 | ||
| Case study | 541 | ||
| Moot points | 541 | ||
| Further reading | xii | ||
| 16 Investment of trust funds | 543 | ||
| Learning objectives | 543 | ||
| Setting the scene: Nestlé v National Westminster Bank plc [1993] 1 WLR 1260 | 544 | ||
| Introduction | 544 | ||
| The duty of investment and the power of investment | 545 | ||
| The objectives of trust investment | 545 | ||
| Historical note and contemporary trends in trustee investment | 547 | ||
| Common law and statutory duties when investing | 550 | ||
| Express powers of investment | 558 | ||
| Statutory power of investment | 560 | ||
| Purchase of land as an investment | 566 | ||
| Mortgages of land as an investment | 566 | ||
| Enlargement of investment powers: the return of the Re Kolb principle | 568 | ||
| The duty to act fairly amongst the beneficiaries | 570 | ||
| Conclusion | 573 | ||
| Case studies | 574 | ||
| Moot points | 575 | ||
| Further reading | 575 | ||
| 17 Fiduciary nature of trusteeship | 577 | ||
| Learning objectives | 577 | ||
| Setting the scene: Keech v Sandford (1726) Sel. Cas. Ch. 61 | 578 | ||
| Introduction | 579 | ||
| Defining fiduciary relationships | 579 | ||
| The purchase of trust property | 591 | ||
| Trustee remuneration | 594 | ||
| Incidental profits | 598 | ||
| Remedies for breach of fiduciary duty | 600 | ||
| Conclusion | 609 | ||
| Case study | 609 | ||
| Moot points | 609 | ||
| Further reading | 610 | ||
| 18 Powers of trustees | 611 | ||
| Learning objectives | 611 | ||
| Setting the scene: Re Pauling’s Settlement Trusts [1964] Ch 303 | 612 | ||
| Introduction | 612 | ||
| The power to delegate | 613 | ||
| The power of maintenance | 620 | ||
| The power of advancement | 624 | ||
| Miscellaneous powers of trustees | 630 | ||
| Conclusion | 634 | ||
| Case studies | 635 | ||
| Moot points | 635 | ||
| Further reading | 636 | ||
| 19 Variation of trusts | 637 | ||
| Learning objectives | 637 | ||
| Setting the scene: Re Weston’s Settlements [1969] 1 Ch 233 | 638 | ||
| Introduction | 639 | ||
| The rule in Saunders v Vautier | 639 | ||
| The court’s inherent jurisdiction to order variation | 643 | ||
| Statutory provisions | 648 | ||
| The Variation of Trusts Act 1958 | 654 | ||
| Conclusion | 667 | ||
| Moot points | 668 | ||
| Further reading | 668 | ||
| Part V Breach of trust and remedies | 669 | ||
| 20 Breach of trust and personal remedies | 671 | ||
| Learning objectives | 671 | ||
| Setting the scene: Target Holdings v Redferns [1996] AC 421 | 672 | ||
| Introduction | 673 | ||
| The personal liability of the trustee | 674 | ||
| Liability for co-trustees | 682 | ||
| Joint liability, contribution and indemnity | 683 | ||
| Established principles when assessing liability | 685 | ||
| Defences in a personal claim | 692 | ||
| Limitation of actions | 702 | ||
| Conclusion | 705 | ||
| Case study | 705 | ||
| Moot points | 706 | ||
| Further reading | 706 | ||
| 21 Tracing and a proprietary claim | 707 | ||
| Learning objectives | 707 | ||
| Setting the scene: Re Diplock [1948] Ch 465 | 708 | ||
| Introduction | 708 | ||
| Proprietary claims and tracing | 709 | ||
| Tracing and proprietary claims at common law | 712 | ||
| Tracing and proprietary claims in equity | 715 | ||
| Conclusion | 726 | ||
| Case study | 727 | ||
| Moot points | 727 | ||
| Further reading | 728 | ||
| Part VI Charities and charitable trusts | 729 | ||
| 22 Charities and charitable trusts | 731 | ||
| Learning objectives | 731 | ||
| Setting the scene: IRC v McMullen [1981] AC 1 House of Lords | 732 | ||
| Introduction | 733 | ||
| A historical note | 733 | ||
| The structure of charity | 735 | ||
| The Charities Act 2006 and the Charities Act 2011 | 737 | ||
| Differences between charitable trusts and private trusts | 738 | ||
| Regulation and supervision of charities | 742 | ||
| Requirements for a charitable trust | 745 | ||
| The definition of charity | 746 | ||
| Charitable purposes under the Charities Act 2011 | 752 | ||
| Recreational charities | 787 | ||
| Public benefit | 790 | ||
| Exclusively charitable | 804 | ||
| Trusts with political purposes | 809 | ||
| Conclusion | 815 | ||
| Case studies | 816 | ||
| Moot points | 816 | ||
| Further reading | 817 | ||
| 23 The cy-près doctrine | 819 | ||
| Learning objectives | 819 | ||
| Setting the scene: Re Rymer [1895] 1 Ch 19 and Re Slevin [1891] 2 Ch 236 | 820 | ||
| Introduction | 821 | ||
| The court’s inherent jurisdiction to apply cy-près | 821 | ||
| A general charitable intent | 824 | ||
| Initial failure | 826 | ||
| Subsequent failure | 832 | ||
| The Charities Act 1993 | 835 | ||
| The Charities Act 2011 | 839 | ||
| Charity donations and unidentifiable donors | 841 | ||
| Cy-près schemes | 844 | ||
| Conclusion | 844 | ||
| Case study | 845 | ||
| Moot points | 845 | ||
| Further reading | 846 | ||
| Index | 847 |